I went over limit on emergency leave for my kids

I work part time 16 hours over three days, am a single parent and have three children, two of whom have autism. I have been granted eight dependent days leave over the last year. The company policy states five days are allowed per year and I am now at the stage of being given a final warning and potentially being sacked. I have used all my holidays for the year, having most spare for emergencies and hospital appointments and have no more days left. When I have had to take a day off due to the children’s issues, I have always requested if I can work my hours the day after it whenever possible that week once I have arranged some family care, but I am told there are no available hours even when others have been offered overtime on those days, at the times I can work. Another aspect of the business is that they are constantly sending colleagues home to save on costs. I consulted the company’s occupational health provider who told me that I will probably end up being dismissed and I may as well go onto benefits. I am not really sure where to turn now. I gave up my managerial career with this company when my second child was diagnosed and the company could not incorporate a part-time role for me that enabled me to care for the children. I am desperate to retain my job. It can sometimes be the only time I have an adult conversation.

Your query raises a number of complex legal points and I would suggest that you take detailed advice in relation to your situation, However, in brief, you should consider the following points :

Time off for dependents and associated claims

I note from your question that your employer has stated that it is their policy to only allow 5 days’ leave for dependents. However, assuming you are regarded as an employee, you are entitled to take a “reasonable” amount of unpaid time off work to take “necessary” action to deal with particular situations affecting your dependents, which, of course, includes your children. Under section 57A of Employment Rights Act 1996 there are no limits on how many times you can take time off to deal with an emergency involving a dependent. However, the law is clear that you can’t have time off if you knew about the situation beforehand e.g. if one of your children had a doctor’s appointment that you knew about weeks in advance.

The right to take time off to care for your dependents is a right to take unpaid time off only. It may be your employer’s policy to only pay you for five days to deal with emergencies involving one of your children, but they cannot limit, or treat you unfairly, for taking time off for an emergency involving your children. Similarly they cannot refuse you reasonable time off or dismiss you because you asked for time off to care for a dependent in an emergency. Furthermore, the company’s policy to only allow five days off for emergency leave may amount to indirect sex discrimination as women, generally speaking, bare the majority of the childcare responsibilities. I would suggest you hold an informal meeting with your employer about your situation and ask them to clarify the legal basis of their argument to use disciplinary measures against you for taking time off in an emergency to care for your children. If this does not resolve matters, I would advise you to submit a formal grievance.

If your employer continues to refuse to allow you to take time off for dependents or if you suffer a detriment for taking or seeking to take time off, you could submit a claim to an employment tribunal and you could be awarded compensation. As stated, you could also have a claim for indirect sex discrimination. Any such claim must be brought within three months of the refusal/detriment/discriminatory act and you must go through the Acas pre-conciliation procedures before your claim will be accepted by an employment tribunal.

If you were dismissed for taking time off to deal with an emergency involving your children (or, it was one of the principal reasons), I would suggest you take immediate legal advice as you may have grounds for an unfair dismissal claim, whether or not you have the necessary two years’ qualifying service. Claims must be brought within three months beginning with the date on which the refusal, detriment or dismissal occurred. If a tribunal determines that you had been unfairly dismissed it may order re-engagement, reinstatement or compensation. It is also important to note that you would have to undergo the Acas early conciliation process before submitting a claim.

Parental leave

If there are situations in the future where you know you will need time off of work then you may wish to consider applying for unpaid parental leaveto care for your children. As long as you have been with your employer for over one year and assuming you are an employee (rather than a worker – e.g. an agency worker or contractor) then you would be eligible. Parental leave is unpaid and you’re entitled to 18 weeks’ leave for each of your children, up to their 18th birthday. The limit on how much parental leave you can take in one year is 4 weeks per child. Parental leave must be taken as whole weeks. As you work three days per week then a week for you would be classed as three days. You must give 21 days’ notice before your intended start date. Your employer can only delay the leave if they have a ‘significant reason’, e.g. it would cause serious disruption to the business. If this was the situation then your employer must write explaining why within seven days of the original request and suggest a new start date within six months of your requested date. They also cannot change the amount of leave you request.

Disability discrimination

You should also bear in mind that under section 13 of the Equality Act 2010 carers of disabled individuals now enjoy greater protection from less favourable treatment on the ground of another person’s disability. Although ‘carer’ status is not a protected characteristic under the Equality Act, autism is a lifelong, developmental disability and if your children’s’ disabilities are a reason for you receiving less favourable treatment at work then it may be enough to establish direct discrimination. It need not be the sole reason for the treatment, but has to have had a significant influence on the outcome. Again, any such claim must be brought to an employment tribunal within three months of the discriminatory act and you must go through the Acas pre-conciliation procedures.

Constructive unfair dismissal

This is where you resign in response to a fundamental breach of your contract of employment on the part of your employer. Again, any such claim must be brought within three months of your resignation and you must go through the Acas early conciliation procedures before submitting a claim.

Your employer’s behaviour in not allowing you time off to care for your dependents could well constitute such a fundamental breach of your contract. I also note that the occupational health provider told you that ‘you will probably end up being dismissed’ and that you ‘may as well go onto benefits’. As stated, I would suggest that you submit a grievance regarding your employer’s behaviour, but if this does not resolve matters, I would strongly advise you to take specific legal advice in relation to next steps and potential tribunal claims.

Should you require any further clarification on the above points please do not hesitate to contact Tracey Guest on 0161 975 3823.